Citation NR: 9735745 Decision Date: 10/23/97 Archive Date: 10/28/97 DOCKET NO. 96-10 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to nonservice-connected disability pension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The appellant-veteran served on active duty from August 1966 to September 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of rating decisions in June 1993 and August 1995 of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being decided by the Acting Member of the Board who conducted a hearing on appeal in Washington, D.C., in August 1997. The issue of entitlement to nonservice-connected disability pension is addressed in the REMAND section of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has PTSD related to his combat experiences in Vietnam. DECISION OF THE BOARD In accordance with 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that the evidence favors service connection for PTSD. FINDINGS OF FACT 1. The veteran was awarded the Combat Action Ribbon for service in the Republic of Vietnam that is conclusive evidence of an in-service stressor. 2. There is medical evidence of a clear diagnosis of PTSD and of a causal nexus between current PTSD symptomatology and the in-service combat stressors. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1997); 38 C.F.R. § 3.304(f) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION On the facts of this case, the Board finds that the veteran satisfied his initial burden of submitting a well-grounded PTSD claim because he has submitted medical evidence of current disability, evidence of in-service stressors, which in a PTSD claim is the equivalent of in-service incurrence and, medical evidence of a nexus between in-service stressors and PTSD. And after review of the record and of the veteran’s evidentiary assertions, the Board determines that the facts relevant to the claim have been developed and there is no further duty to assist the veteran with the development of his claim. 38 U.S.C.A. § 5107(a). Factual Background The service medical records, including the reports of entrance and separation examinations, are negative for any complaint, finding or history of PTSD symptomatology or PTSD. Service personnel records, including a copy of the DD Form 214, disclose that the veteran served in the Republic of Vietnam (Vietnam) from October 1967 to November 1968 as a rifleman for Company E, 2nd Battalion, 1st Marine Regiment, 1st Marine Division; he participated in 10 combat operations and he was awarded the Combat Action Ribbon. After service, the veteran filed his original and current claim for PTSD in March 1993. In May 1993, the RO referred the veteran for a psychological evaluation that was conducted by a clinical psychologist. The evaluation was based on veteran’s self-report, including a copy of his DD Form 214, and psychological tests, including the Minnesota Multiphasic Personality Inventory -- II (MMPI- 2), the Mississippi Scale for Combat Related PTSD (M-PTSD) and the PTSD and Diagnostic Interviews. The examiner reported that the results of the evaluation failed to confirm a diagnosis of PTSD. The diagnostic impressions, citing DSM-III-R, were alcohol dependence and to rule out bipolar- affective disorder. Following the evaluation, the veteran was examined by a VA psychiatrist, who reported that PTSD was not diagnosed on the examination, referring to the May 1993 report of psychological testing. In a June 1993 rating decision, the RO denied the claim of service connection on the grounds that PTSD was not shown. The veteran then perfected an appeal of the adverse determination that is now before the Board for appellate review. A summary of the additional evidence of record follows. On a VA psychiatric consultation in April 1993, following the veteran’s request for detoxification, the diagnoses were “ETOH” dependence and PTSD. History included combat in Vietnam. A May/June 1993 VA hospital summary discloses that the veteran was admitted to the Substance Abuse Treatment Unit. History included a screening for PTSD at a Vet Center. On psychological assessment during the hospitalization, the veteran was described as a Vietnam era veteran who saw combat and who had a diagnosis of PTSD. After psychological testing, including an invalid MMPI profile, the diagnoses were alcohol dependence and depression. The diagnoses on the hospital discharge summary included PTSD. Progress notes of the Greenville Vet Center, covering the period from June to December 1993, disclose that in December 1993 the diagnostic impression was PTSD based on psychological testing. The entry was signed by a mental health professional. On VA psychological evaluation in April 1994 conducted by a clinical psychologist, who had reviewed the veteran’s claims file, the diagnostic impressions were alcohol dependence, currently in remission, by history, provisional cyclothymia and personality disorder. After the psychological testing, the veteran was seen by a consultant in neuropsychiatry who diagnosed cyclothymia. In June 1994, the veteran was evaluated by the Physician- Director of the PTSD Program at the Durham, North Carolina, VA Medical Center (Durham VAMC). The veteran was described as a Vietnam combat veteran who experienced several distinct traumatic events in Vietnam. The primary diagnosis was PTSD. In July 1994, the veteran was evaluated by other mental health professionals for the PTSD Program at the Durham VAMC. The evaluation was based on the veteran’s self-report, psychological tests, including the MMPI-2 and the M-PTSD, and the DSM-III-R Structural Interview. History included the veteran’s tour of duty in Vietnam where he experienced combat trauma. The veteran’s PTSD symptomatology were intrusive thoughts, avoidance of stimuli associated with Vietnam, feelings of detachment and estrangement from others, a sense of a foreshortened future, sleep difficulties, anger and hypervigilence. It was summarized that the results of the clinical interviews and the psychometric testing supported a primary diagnosis of PTSD. The psychosocial stressors included combat. In December 1994, the RO referred the veteran for a psychological evaluation that was conducted by a clinical psychologist. The evaluation was based on veteran’s self-report, including a copy of his DD Form 214, psychological tests, including the MMPI-2 and the M-PTSD, PTSD and Diagnostic Interviews, the May 1993 psychological evaluation, the May/June 1993 report of VA hospitalization, and the July 1994 report from the Durham VAMC. The examiner reported that the results of the evaluation failed to confirm a diagnosis of PTSD and were contradictory to the July 1994 findings of the Durham VAMC evaluation. The diagnostic impressions, citing DSM-III-R, were depressive disorder, alcohol dependence, currently in remission, rule out bipolar disorder and mixed personality traits. Following the evaluation and after review of the psychological testing, the veteran was examined by a neuropsychiatric consultant for VA and by a VA psychiatrist. One psychiatrist diagnosed depression and the other diagnosed depressive disorder and PTSD not diagnosed on examination. On psychiatric evaluation for state disability determination in December 1994, the physician asked the veteran about Vietnam, but he could not elicit symptoms consistent of PTSD under DSM-III-R. The psychiatric impressions were bipolar affective disorder, history of alcohol dependence and personality disorder. In an August 1995 progress note, the Physician-Director of the PTSD Program at the Durham VAMC and a clinical psychologist, citing DSM-IV, reported that the veteran had been involved in a clinical medication trial for the treatment of his PTSD from June 1994 to April 1995. The primary diagnosis was PTSD. In a second August 1995 progress note from the Greenville Vet Center, signed by a mental health professional, it was reported that the veteran was seen at the Vet Center for PTSD, resulting from his combat experiences while serving in Vietnam and that due to the severity of his condition he was referred to the specialized PTSD Clinical Program at the Durham VAMC. The primary diagnosis was PTSD. The psychosocial stressors were combat and loss of comrades. In an October 1985 statement, E. W. H., M. D., suggested a treatment plan for the veteran’s PTSD. The veteran testified that he was a combat infantry rifleman in Vietnam, that he was involved in 11 major operations and that he saw Marines killed in combat. August 1997 hearing transcript. Analysis Applicable Law and Regulations Adjudication of a well-grounded claim of service connection for PTSD requires the evaluation of the evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran’s military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). With respect to disabilities incurred during combat, VA is required to accept as sufficient proof of service connection “satisfactory lay evidence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact there is no official record of such incurrence in such service.” 38 U.S.C.A. § 1154(b). Section 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred in service, but not a basis to link etiologically the condition in service to the current condition. In addition section (f) of 38 C.F.R. § 3.304, pertaining to the adjudication of PTSD claims, provides that: Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. The VA Adjudication Procedure Manual M21-1, Part VI, para. 11.38 (first sentence) (Feb. 13, 1997) [hereinafter M21-1], was amended to reflect the PTSD requirements set forth in 38 C.F.R. § 3.304(f). The veteran is entitled to have his claim adjudicated under whichever regulatory or M21-1 provision would be more favorable to him in light of the regulatory change while his case was on appeal to the Board. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Also the Court has previously held that the M21-1 provisions, pertaining to PTSD, were substantive rules and the equivalent to VA regulations. Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993) appeal dismissed, 26 F.3d 137 (Fed. Cir. 1994). During the pendency of the appeal, VA amended the provisions of M21-1 by adding the Combat Action Ribbon to the list of decorations that generally are to be considered conclusive evidence of an in-service stressor. Because the amendment to M21-1 establishes a more liberal method of demonstrating the existence of an in-service stressor, it is more favorable to the veteran and the amended version of M21-1 is applicable here. See Marcoux v. Brown, 10 Vet. App. 3, 5-6 (1997). Also during the pendency of this appeal, effective November 7, 1996, VA amended several sections of the Schedule for Rating Disabilities in order to update the portion of the Rating Schedule, pertaining to mental disorders, and, in part, to conform with changes with the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV), replacing the 1980 3rd edition of DSM (DSM-III) and the 1987 revised 3rd edition DSM (DSM-III-R). 61 Fed. Reg. 52,695 (1996) (to be codified at 38 C.F.R. Part 4, §§ 4.125 to 4.130). Under DSM-IV, the diagnostic criteria for PTSD, in pertinent part, shifts from an objective standard (seen in DSM-III-R) in assessing whether a stressor is sufficient to trigger to PTSD to a subjective standard. The November 1996 amendment has not changed the requirements of 38 C.F.R. § 3.304(f) and the M21- 1 provisions. In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court held that the DSM diagnostic criteria cannot be read in a manner that would add requirements over and above the three primary elements set forth in 38 C.F.R. § 3.304(f). Accordingly, the applicable DSM criteria come directly into play for adjudication only when there is a medical opinion as to a current PTSD diagnosis and a nexus of current symptomatology to a claimed in-service stressor -- two of the three PTSD elements under 38 C.F.R. § 3.304(f). The version of DSM most favorable to the veteran applies. In summary, the award of service connection for PTSD, therefore, requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specified claimed in-service stressor. Applying the Law to the Facts (1). Current medical diagnosis: The evidence in favor of a current medical diagnosis of PTSD consists of: The diagnostic impression of PTSD based on psychological testing (December 1993 progress note from the Greenville Vet Center, signed by a mental health professional); the primary diagnosis of PTSD (June 1994 evaluation by the Physician- Director of the PTSD Program at the Durham VAMC); the primary diagnosis of PTSD (July 1994 evaluation by mental health professionals for the PTSD Program at the Durham VAMC with reference to DSM-III-R Structural Interview); the primary diagnosis of PTSD (August 1995 progress note, signed by the Physician-Director of the PTSD Program at the Durham VAMC and a clinical psychologist, citing DSM-IV); and, the primary diagnosis of PTSD (August 1995 progress note from the Greenville Vet Center, signed by a mental health professional). The evidence against the current diagnosis of PTSD consists of: Psychological evaluation failed to confirm a diagnosis of PTSD (May 1993 psychological evaluation conducted by a clinical psychologist, citing DSM-III-R); PTSD not diagnosed on examination (May 1993 report of a VA psychiatrist); no diagnosis of PTSD (April 1994 VA psychological evaluation and examination by a neuropsychiatric consultant); psychological evaluation failed to confirm a diagnosis of PTSD (December 1994 psychological evaluation that was conducted by a clinical psychologist, citing DSM-III-R); no diagnosis of PTSD (examinations following the December 1994 psychological evaluation by a neuropsychiatric consultant for VA and by a VA psychiatrist); and, no elicited symptoms consistent with PTSD under DSM-III-R (December 1994 psychiatric evaluation for state disability determination). In this case, the Board finds the evidence in favor of a current medical diagnosis of PTSD more persuasive than the evidence against the diagnosis of PTSD. Significantly, PTSD has been diagnosed under both the DSM-III-R and DSM-IV criteria, while only the DSM-III-R criteria were considered in the evidence against the claim. In other words the diagnosis of PTSD under the criteria of DSM-IV is not contradicted by competent medical evidence. For this reason, the Board finds that the evidence favors the finding that the medical evidence establishes a current, clear diagnosis of PTSD. (2). Occurrence of in-service stressors: The veteran’s Combat Action Ribbon is conclusive evidence of an in-service combat stressor on the basis of service department evidence. The Board, therefore, finds that the veteran did engage in combat with the enemy. As for the veteran’s testimony about witnessing Marines killed in combat, under 38 U.S.C.A. § 1154(b), having found that the veteran engaged in combat, the Board accepts the veteran’s testimony about the loss of comrades as satisfactory lay evidence of an in-service stressor consistent with the circumstances, conditions, or hardships of such service. See Irby v. Brown, 6 Vet. App. 132, 136 (1994) (section 1154(b) cannot be applied to appellant’s PTSD claim until the Board first finds that the appellant engaged in combat). For these reasons, the Board finds that the evidence favors the finding that the in-service stressors were combat related. (3). Nexus evidence: Combat stressors have been consistently associated with the diagnosis of PTSD: The veteran was described as Vietnam combat veteran who experienced several distinct traumatic events in Vietnam (June 1994 evaluation by the Physician-Director of the PTSD Program at the Durham VAMC); psychosocial stressors included combat (July 1994 evaluation by mental health professionals for the PTSD Program at the Durham VAMC); and, the psychosocial stressors were combat and loss of comrades (August 1995 progress note from the Greenville Vet Center, signed by a mental health professional). In light of the above, the Board finds competent evidence of a current, clear medical diagnosis of PTSD, credible supporting evidence that the claimed in-service combat stressors actually occurred, and medical evidence of a causal nexus between current PTSD and the in-service stressors, that favorably supports the grant of service connection for PTSD. ORDER Service connection for PTSD is granted. REMAND As the grant of service connection for PTSD impacts on the veteran’s claim for nonservice-connected disability pension, the Board determines that further development of this issue is necessary for a proper appellate decision and remands the claim for nonservice-connected disability pension to the RO for the following action: 1. The veteran may submit additional evidence or argument of the remanded issue. 2. After effectuating the Board’s grant of service connection for PTSD, the RO should adjudicate the claim of nonservice-connected disability pension, considering both service-connected and nonservice-connected disabilities. If the evidence of record is inadequate for rating any service-connected or nonservice-connected disability, the veteran should be afforded the appropriate medical examination before adjudicating the claim. In the benefit sought on appeal is denied, the veteran and his representative should be furnished a supplemental statement of the case and they should be given the requisite time to respond. Thereafter, the case should be returned to the Board. GEORGE E. GUIDO JR. Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -